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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ministers of Old Machar v. Heritors [1867] ScotLR 5_335 (28 February 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0335.html Cite as: [1867] ScotLR 5_335, [1867] SLR 5_335 |
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Objection to decrees of valuation produced by heritors in a locality, that, in the processes in which these decrees were pronounced by the High Commission, the ministers of the parishes had not been called as parties, sustained (Lord Curriehill diss). Opinion, by majority, that the law was well settled to that effect, both as to decrees of valuation and decrees of approbation. Opinion, per Lord Curriehill, that where the minister was merely a stipendiary, it was not necessary to cite him to any process of valuation previous to the year 1707.
This was a question arising between the ministers and the heritors in the locality of Old Machar, in the county of Aberdeen. In 1862 the ministers obtained an augmentation. The common agent who was appointed to conduct the locality gave in a report giving effect to certain decrees of valuation produced by heritors, and stating that there was no free teind in the parish of Old Machar out of which the augmentation awarded by the Court could be provided. The ministers objected to this report. With regard to the valuations founded on by Mr Forbes of Balgownie, Mr Cumming Skene of Mindurno, Mr Gordon Hay of Seaton, and Major Paton of Grandholm, they objected that the valuations were invalid in respect that the minister had not been a party thereto. They further contended that the teinds of the lands of Mr Fisher of Murcar and Mr Barron of Denmore were unvalued. Mr Fisher and Mr Barron, in their answers to the objections for the ministers, produced valuations, and alleged that their teinds were surrendered and exhausted, and accordingly the ministers did not further object as regarded these heritors. The Lord Ordinary ( Barcaple) found that Mr Forbes, Mr Skene, Mr Hay, and Major Paton had not produced any valuations which could be sustained as effectual against the ministers, and found them liable in expenses. With regard to Mr Fisher and Mr Barron, who produced valuations which were not now objected to, he found these respondents neither entitled to nor liable in expenses; and remitted to the clerk to correct the locality. The heritors reclaimed.
Young and Fraser for Mr Forbes.
Adam for Major Paton.
Clark and Keir for Mr Skene.
Clark and H. Smith for Mr Hay.
Gifford and Asher for respondents.
Lord President — In this case the two ministers of the parish of Old Machar obtained an augmentation upon the 15th of January 1862, and a remit was made to prepare a locality in the common form. The first step in the locality was the preparation of a report by the common agent on the state of the teinds, and the result of that was, that in the view of the common agent there was no free teind in the parish out of which the augmentation awarded to the ministers could be provided. This result, however, was brought out by giving effect to certain decrees of valuation; and the ministers objected to the report of the common agent upon the ground that certain of these decrees of valuation were invalid, and ought not to be given effect to. Upon the objections of the minister a record was made up, and the Lord Ordinary, in the interlocutor now under review, finds that certain heritors—Harry David Forbes, John Gordon Cumming Skene, James Gordon Hay, and Major Paton—have not produced valuations of their respective teinds which can be sustained as effectual against the ministers of the parish. These four heritors have reclaimed against the judgment, and the question is, whether the Lord Ordinary's interlocutor ought to be adhered to or altered? The ground of the Lord Ordinary's judgment in regard to all of these four heritors, each of whom founds upon a separate decree of valuation, is, that in the processes in which these decrees were pronounced by the High Commission, the minister of the parish was not called as a party. Before proceeding to consider the effect of this objection, it is necessary to say a word or two as to the nature of the decrees of valuation. There are three of them—viz., those of Mr Gordon Skene, Mr Gordon Hay, and Major Paton,—that appear to me to stand very much in the same position. Mr Gordon Skene is proprietor of certain lands called Mindurno—at least that is the leading name—and he founds on a decree of valuation by the High Court in 1683. Now this decree, although called a decree of valuation, is in truth a decree of approbation, and the thing which is approved of by that decree is not a valuation by the sub-commission, but a consent of the titulars and the heritors that the teinds shall be taken as at a certain value. That consent is contained in a tack of teinds by the titulars to the heritors, dated in 1681, just two years before the decree of approbation. Mr Gordon Hay is proprietor of the lands of Bridgefields and Seaton, and he founds upon a decree of the High Court in 1684, which also proceeds upon a consent, and is in truth a mere approbation by the Court of that which parties had extrajudicially agreed to, the consent being contained in a tack of the teinds by the titulars to the heritor, dated in 1681—that is to say, three years before the decree. Major Paton is the proprietor of the lands of Grandholm, and he founds upon a decree of the High Court, dated in 1690, which proceeds partly— that is to say, as regards a certain portion of the lands—on a deed of consent by the titular in 1688, consenting that the teinds of the heritor's lands shall be valued at a certain rate. This deed of consent is produced by the heritor in the process, and is given effect to without inquiry by the decree. As regards the rest of his lands, the decree proceeds upon a consent contained in a tack of the teinds of these lands, granted by the titulars to the heritor, and containing a consent by the titulars that the teinds shall be valued at a certain rate. In the case of Mr Forbes, the leading reclaimer, the decree stands in a somewhat different position. He is proprietor of the lands of Balgownie, and the teinds of these lands are said to be valued by a decree of the High Court in 1697. There is no doubt that in the process in which that decree was pronounced there were but two parties present—the heritor on the one hand, who was pursuer of the actions, and the King's College of Aberdeen, who were the titulars of the teinds and defenders of the action. After the action came into Court, but it does not precisely appear at what stage of the process, these two parties came under an arrangement to submit the value of the teinds to arbitration; and they made choice of Sir James Scougall, then one of the senators of the College of Justice, as arbiter. There was an inquiry accordingly before Sir James Scougall
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Now, it is not immaterial to notice in passing, that among the commentators upon Mr Erskine, there is not one that throws the slightest doubt upon this statement in the text. The earliest commentator states, in a note, that the Court do not require the same regularity to appear in the reports from sub-commissioners, and no author has over said that they do. But he states that, not as derogating from the authoritiy of the text, but, on the contrary, supporting it, by stating that in another class of cases, not embraced within the statement in the text, the rule of procedure is understood to be different. I think a good deal of misapprehension is sometimes introduced in the discussion of this question by calling the minister a stipendiary. I don't mean to say that he is not a stipendiary in a certainly perfectly proper sense of that term, because he is the recipient of a stipend. That is very true; but the word stipendiary is apt to convey an inaccurate impression, as if he were a stipendiary in this sense, that he has a certain fixed salary assured to him, and nothing more. Now, in that sense he is not a stipendiary. On the contrary, while he has a present stipend in enjoyment, he has a larger stipend in expectancy. He is entitled to have his stipend augmented from time to time, and he has a fund out of which, but out of which alone, he is entitled to draw these augmentations. That shews, I think, as plainly as anything can possibly do, that in the amount of that fund, out of which alone he can draw any augmentations of his stipend, he has as deep an interest as any one possibly can have. Now, this concludes all that one has to say about the history of the matter during the last century. There is really no more authority, no more light, to be had about it; and if the matter rested there, I should have supposed that he would be a very bold man indeed who would attack Mr Erskine's law on this subject, and say that it was unsound. And accordingly,. I think it has
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In the consideration of that question it is of importance to keep in view that when the Reformation took place, the parish ministers of Scotland consisted of two different classes. One of these consisted of ministers, who were the owners or titulars of the teinds. These again consisted, in the first place, of the parish ministers, who had still continued to be parsons; and who, according to Keith's list of them, were 262 in number; and secondly, of some vicars, in whose favour rights to vicarage-teinds had been made separate benefices. The remaining class consisted of ministers who had no right to the teinds, but were merely stipendiaries of other parties who had become owners or titulars of the teinds, in the following manner:—“Patrons,” as stated by Erskine (2, 10, 11), “who considered themselves, upon the merging of every vacancy, as the absolute proprietors of the benefice, assumed frequently a power of appropriating or annexing the whole endowments of it to a cathedral church or monastery, both that part which was given by themselves and even the tithes. By this annexation the patron conveyed from himself to the donees not only the right of presenting an incumbent, but all the fruits of the benefice, so that the donees became in effect the perpetual beneficiaries of the church annexed, and of consequence the titulars of all the tithes belonging to it.”
After the Reformation, the legal right to those tithes, which had been so acquired by bishops, or by religious houses, was held by the donees of the Crown, and never was restored to the ministers of the parishes from which they were drawn; and hence the ministers of these parishes continued to be merely stipendiaries. Indeed, during a period of about half a century after the era of the Reformation these ministers received their stipends—not out of the trinds of the parishes in which they officiated— but indiscriminately out of the general fund, which was denominated the thirds of benefices. And although, by the Statute 1617, cap. 3, a stipend of 500 merks, or of 5 chalders of victual, was appointed to be paid to each of these stipendiaries, by the titulars of the tithes of the respective parishes in which they officiated; yet they had merely a personal claim on these titulars, and no right to draw the tithes themselves. That Statute itself distinguished the right so conferred upon them from that which belonged to the other class of ministers, who were beneficiaries, by enacting, “where the fruits of any benefice are in the possession of a minister, that the same shall be continued in the estate wherein it is at the present, and not to be meddled with by virtue of the said commission.”
So stood matters when the system of valuing the tithes of the lands in Scotland commenced under the Commission of Surrenders issued by King Charles I. on 27th January 1627. I have examined the commissions and statutes under which these valuations were made during all the seventeenth century in order to ascertain whether or not such stipendiaries were thereby required to be called as parties to these valuations, either, first, by any rule of common law; or, secondly, by any express direction in these commissions or statutes; or, thirdly, by the practice of the commissioners; or, fourthly, by judicial decisions. I shall state the result of these inquiries as briefly as possible.
I. It has been suggested that this was required by the common law, in respect that the minister had an interest in the proceeding, inasmuch as if the teinds should be estimated at an under value, his privilege of afterwards obtaining an augmentation of his stipend might have been detrimentally affected. And it is true that he had such an interest; and also that it is a general rule in proper judicial proceedings that all parties directly interested should be called as parties to them. But what was the nature and extent of the interest of a stipendiary minister in such valuations of teinds? He was not the owner of the teinds which formed the subject of the valuations. He was not entitled to draw the ipsa corpora of them, or to interfere with them in any way. The titular was exclusively
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II. The next inquiry is, whether in the commissions and statutes, under which these valuations were made, there was any provision which required stipendiary ministers to be called as parties to the proceedings?
1. These valuations were authoritatively commenced under the Commission of Surrenders of 1627 already mentioned, and under the arbitrations of King Charles I., which were part of the proceedings under that commission. These decrees-arbitral were pronounced upon four submissions by the different classes of persons to whom the teinds of Scotland then belonged—viz., one by the Lords of Erection and other titulars who, at the commencement of the Reformation, had acquired rights to a large proportion of the teinds of the country, in the manner already mentioned: a second by the Bishops and other beneficed clergy already mentioned; a third by the commissioners of the royal burghs; and a fourth by tacksmen of teinds and others. But the merely stipendiary ministers were not parties to any of these proceedings. Nor were they referred to in the decrees-arbitral, otherways than as parties whose interests were protected by the titulars to whom the teinds then belonged. On the other hand, in these decrees-arbitral the interests of all beneficed clergymen were carefully provided for, by their being exempted from any obligation to sell their teinds to the heritors, although these were to be valued as well as the other teinds.
2. While that arbitration was in dependence, subcommissioners were appointed by each of the Presbyteries of Scotland to value the teinds of the lands within these different localities; and on 2d February 1629, commissions by his Majesty, in concurrence with the High Commission, were issued to these Sub-Commissioners, containing instructions as to the mode of procedure to be followed by them. The terms of these commissions show that the parties to be called to the processes of valuation were only the titulars and heritors, and not ministers who were not also titulars. While these Sub-Commissioners were thereby directed “to call all parties having interest in the valuation before them,” the sequel shows that only two parties were held to fall under that description—viz., titulars and the heritors. These Sub-Commissioners were directed to proceed in the valuations “ if both parties be present;” and “if neither titular nor heritor will compear,” a procurator-fiscal was to be appointed to lead the proof of the value. That these were the only parties who were required to be called as parties appears farther from the directions given as to the mode of leading the proof of the value. When the stock and teind had been possessed jointly, the parties who were to lead the proof were “the titular or heritor, or either or both of them;” and when the stock and teind had been possessed separately, the titular alone was to prove the value of the teinds; the heritor in that case being allowed to prove the stock. In no case was the minister (unless he was also titular) required by the tenor of these sub-commissions to be a party to the proceeding. Nor was a procurator-fiscal to be appointed if both the titular and the heritor appeared.
3. The first of the series of statutory commissions was appointed by the Statute 1663, cap. 19. That commission, which consisted of 45 members, who were not professional lawyers, but chiefly members of Parliament, selected from the different estates— prelates and noblemen, freeholders, and commissioners of burghs. These commissioners were directed both to prosecute the valuations of such teinds as were still unvalued, and likewise “to receive the reports from the Sub-Commissioners appointed within ilk Presbytery, of the valuation of whatsoever teinds led and deduced before them, according to the tenor of the sub-commissions direct to that effect; and to allow or disallow the same, according as the same shall be found agreeable or disagreeable from the tenor of their sub-commissions.” And as, according to the tenor of these sub-commissions, mere stipendiary ministers were not required to be parties to the proceedings; and as Parliament made it imperative upon its own High Commission to approve of the valuations so to be made, this enactment was, in effect, a Parliamentary enactment that ministers, who were not also titulars, were not required to be parties to such valuations.
Nor was there in that Statute any direction that, in the valuations before the High Commission itself, these stipendiary ministers should be called as parties to the proceedings. On the contrary, the Statute was framed on the footing that they would
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That such ministers as were not titulars were not required to be parties to processes, either of valuation or of approbations of valuations led before Sub-Commissioners, was placed beyond question by the High Commissioners themselves. On 25th July 1634, they passed an Act in these terms:—“The Lords finds no necessitie to summond the minister to ane valuation, or approbation, except he be titular or taxman. Betwixt the minister of Benethie and hers. yr. of.” To appreciate the full effect of that ordinance, it is proper to observe that the Statute 1633, c. 19, ordained (as indeed all the Parliamentary Commissions of the seventeenth century did) the acts, decreets, and ordinances of these Parliamentary Commissioners “ to have the strength, force, and authority of a decrete, sentence, and Act of Parliament.” Hence the rule established by this Act, 1634, had the same effect as if it had been in the Statute itself. And thus, from the very outside of the valuation of tithes, it was established by Parliamentary authority, on the one hand, that it was not requisite that ministers, who were not also titulars, should be called as parties to valuations; but that, on the other hand, when the valuations were made greatly to their prejudice, they might obtain redress by this separate remedy of rectification.
As most of the records of the Commissioners were destroyed by shipwreck in 1661, and by fire in 1700, the public have had to rely upon such copies of them as have been preserved; and fortunately, the Faculty of Advocates have preserved three copies of a volume containing the ordinances of the commissions for a considerable time after their first appointment. The handwriting of two of these copies appears to be of the period from the middle to the end of the seventeenth century, and the third copy is somewhat later. Sir John Connell, in the appendix (No. 41) to his treatise, has printed about 100 of these ordinances, transcribed from one of these copies, and much of his treatise on teinds is founded upon them. The ordinance of 1634 is one of these; and I have quoted its terms from the most distinctly written of the two older copies. No doubt has ever been stated, until very recently, of the authenticity of these copies of the lost records; and at this distance of time the Court is surely not warranted to reject these documents, which have been so long relied and acted upon, without at least a careful inquiry on the subject. In the absence of such an inquiry, I have for my own satisfaction made such investigation as has been in my power regarding these manuscripts; and from collating them with each other, and from comparing them with two principal sederunt-books which have fortunately been preserved, and are in the Teind Office and the General Register House, with several Acts of Parliaments confirming some of these ordinances, and with numerous references to them by writers on teinds, I am satisfied that the public has no ground for withdrawing or abating the reliance which has hitherto been placed on their authenticity. We have to rely upon similar evidence for the authenticity of the copies, printed in the Statute-book, of the lost originals of the Statutes of the reign of Queen Mary, and of some of her predecessors, and even of the latter part of the reign of Charles I., as appears from Mr Thomson's prefaces to vols. ii, v, and vi, of the Statutes.
4. The next Parliamentary Commission was appointed by the Statute 1641, c. 56. Its functions, quoad the valuation of teinds, were the same as those of the Commission of 1633. One of its proceedings contains further evidence that it was not held to be requisite to call as parties to valuations such ministers as were not also titulars of the teinds. In the exercise of the statutory powers conferred upon them, these Commissioners, on 12th January 1642, issued new Sub-Commissions for valuing the teinds in the different presbyteries. And as this Statute, like the former one, had made it imperative upon the High Commissioners to allow the valuations of the Sub-Commissioners, if these valuations should be made agreeably to the tenor of these Sub-Commissions, it would have been necessary, in framing the terms of these Sub-Commissions, to have expressly required even stipendiary ministers to be called as parties to the valuations, if this had been deemed an indispensable requisite by the Commissioners; for otherwise the sub-valuations could not have been allowed. But they did not do so. The directions as to the parties who were to be called, and who were to prove the value of the teinds, and as to what each of the parties was to prove, were the same, and only the same, as those which were in the former Sub-Commissions of 1629. According to the tenor of both of these Sub-Commissions, no ministers, unless they were also titulars, were required to be called as parties. And the High Commission, by framing the tenor of these Sub-Commissions in these terms, in the knowledge that it would be imperative upon them to confirm the valuations made agreeably to the tenor thereof, gave thus additional proof that no such thing was requisite. It is proper to mention that, although this Commission (with two renewals thereof in 1644 and 1647) was rescinded after the Restoration, yet by the Statute 1661, c. 61, all valuations made by these Commissioners were declared to stand valid.
5. Other six Parliamentary Commissions were appointed between the dates of the Restoration and of the Union, by the Statutes 1661, c. 61; 1663, c. 28; 1672, c. 28; 1685, c. 28; 1686, c. 22; and 1690, c. 30, continued by 1693, c. 23. I need not advert to the enactment in these Statutes
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III. The next inquiry is, whether or not, in practice, the Commissioners did always require stipendiary ministers to be called as parties to valuations? The destruction of the records of the commissions renders it impracticable to ascertain, to the full extent, what their practice was. But some gleanings of information on that subject have come down to us. And it is true that these, on the one hand, do shew that parish ministers were called as parties in numerous valuations. They were, of course, so called in all cases where they were titulars of the teinds as well as ministers. And they were in that position not only in the 262 parishes in which they were parsons, but likewise in many other parishes, in which vicarage teinds had been constituted separate benefices. In all the Parliamentary Commissions, express instruction is given to the Commissioners to value that inferior class of benefices. That instruction, as expressed in the first of the series—viz. the Statute 1633—is, “that the vicarage of each kirk, being a several benefice and title from the parsonage, shall be severally valued to the effect the titulars or ministers serving the cure, who have right to the said vicarages, be not frustrate of the worth of the said vicarages.” Thus in both of these cases, ministers, qua titulars, behoved to be called. They were also called in many cases although they were only stipendiaries; because, as even that class of ministers had the statutory privilege of sueing processes of rectification, in certain circumstances, of valuations made in their absence, it was a prudent precaution, in order to save valuations from the risk of being so disturbed, to call even such ministers as parties to the original processes of valuation. But, on the other hand, that precaution, however recommended by its prudence, was far from being universally adopted. Examples of this—which appear from investigations which were made in some decided cases, of which the reports have been preserved—suffice to shew how frequently parties had abstained from adopting that precaution. Thus, in the report of the decision in the case of Campbelton (to be afterwards more particularly adverted to), it appears that of forty-three parishes in one county (Argyll) there were twenty-three where the ministers were beneficiaries, and behoved to be called; and accordingly, all of these ministers either had entered appearance or had been cited in the valuations before the Sub-Commissioners, while the remaining twenty, who were not beneficiaries, but merely stipendiaries, had not been cited. Another glimpse of the practice, after the Restoration, is obtained by a report which was made by the teind-clerkin the case of Simpson v. Skene—to which also I am afterwards to advert. It thence appears that of sixty-two decrees of valuation between the years 1666 and 1696, the ministers in thirteen, or somewhat more than one-fifth part of the whole, had not been called as parties. Connell (i, p. 276) states, that “it appears from the record that in a number of the valuations adduced in the High Commission in the reign of Charles I., the minister was not called as a party.” We are informed also by Lord Corehouse, in the report of that case of Simpson, that while, in his opinion, the omission to call the minister in valuations was an error, that “error had prevailed to a very considerable extent.” Indeed, the very fact that in this one parish of Old Machar with which we are dealing, there occurred four valuations between the years 1683 and 1697, shews that that practice continued to a considerable extent until the end of the 17th century.
It is thus certain that a considerable proportion of the valuations of the teinds of the territory of Scotland, during that century, was made without the ministers, when they were not also titulars, having been called as parties to them. What has been the consequence? Relying upon all the produce which all their lands might yield beyond the fixed amount of teind-duty specified in these valuations, being their own, the owners of lands expended large amounts of capital in improvements of their estates. Many of these estates have also been the subjects of repeated sales—the prices having been, of course, regulated by the rentals of the lands, on the assumption that the teind-duties to be deducted were only those specified in the subsisting decrees of valuation. Farther, in the successive processes of locality of the stipends of the ministers of the parishes in which these lands are situated, the apportionment of the stipends upon the different heritors has always been regulated by these decrees of valuation. That course of procedure has continued for more than two centuries since the system of valuations commenced, and (as I shall presently shew) the landowners during that period were assured of their safety in trusting to these valuations by a unanimous judgment of this Court, and by an affirmance of that judgment by the House of Lords. And were the valuations of the teinds of the estates of these landowners to be henceforth dealt with as nullities, what would be the consequence? They would be deprived of the produce of much of the capital which they expended in these improvements during the last two centuries, inasmuch as one-fifth part of their rents ( minus the comparatively small sums at which the teinds were estimated in these ancient valuations) would henceforth be exigible from them in all future time by the titulars or clergymen. Or if the owners who made the improvements have sold the lands, the purchasers who have bought them, trusting to these valuations as limiting the deductions to be made from the rentals as the teinds of the lands, would be deprived of the rents thereof to a corresponding extent in all future time. And farther, the data according to which the stipends of the clergymen of all these parishes have been apportioned by decrees of locality would henceforth require to be altered. The changes, therefore, which would thus take place on the rights of parties, as these have been regulated for so long a period by these valuations of the seventeenth century, would inflict very grievous hardships indeed upon the owners of a considerable proportion of the territory of Scotland. In my opinion, there is neither principle nor practice for subjecting them to such forfeitures.
IV. Do, then, the dicta of our institutional writers, and the decided cases, require us to do so? I have carefully examined these authorities; and the result of my inquiries leads me to the conclusion that until the year 1837—more than two centuries after the valuations commenced—it had never
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Let us first see how the institutional writers deal with this matter. Forbes, Mackenzie, and Erskine did state, generally, that the minister of a parish requires to be cited as a party to a process of valuation. And that statement was correct as to valuations in cases in which the ministers were titulars of the teinds which formed the subject of the valuations. But the statement would have been altogether erroneous, if it had been applied to valuations in parishes where the ministers were not also titulars. Unfortunately, none of these authors state which of these two classes they refer to. But we get insight into this matter by examining the only authority upon which they found in support of their dicta. That authority is the decision in the case of Lady Purveshaugh, 1st February 1671. The only report we have of that case, of which I am aware, is that quoted in the appendix to Connell, ii, p. 196. It thence appears that the minister was directed to be cited as a party to the valuation. But why? For two reasons, the second of which was that “ the teinds craved to be valued are assigned to the minister.” He having been the owner of the teinds which were the subject of the valuation, or the titular thereof, behoved, of course, to be called as a party. Hence that case is no authority for holding that stipendiary ministers were required to be parties to valuations. And the same remark applies to Forbes and Erskine, as their equivocal statements are founded only on that case.
Another case founded upon by the objectors is that of Kirkbean, 4th February 1708, Connell ii, 280. In that case a decree of valuation obtained by an heritor had the effect of depriving the minister of a part of the stipend which had been previously modified to him by a decree of augmentation. And it was found that a decree of valuation pronounced in his absence was not binding on him in respect that it in effect rescinded the vested right, which he held in virtue of a prior decree of the Court That case therefore fell under quite a different category.
The objectors also founded on the case of Fergusson v. Gillespie, 4th February 1795 (affirmed on appeal). But in that case also, as stated in the report of the case in the House of Lords, the minister “had the most important interest in the proceedings, being both titular of the teinds and parish minister.”—Paton's App. iii, p. 540.
Thus, down to the beginning of the present century, there was no authority for the doctrine that a decree of valuation was essentially null, unless the minister of the parish, although not also titular of the teinds, had been called as a party. But the question was then raised and settled. This took place in the case of M'Neil v. The Minister of Campbelton. In that case, by a unanimous judgment of this Court on 3d June 1801 (M. “Teinds,” App., No. 12), and an affirmance of that judgment in the House of Lords on 20th February 1809 (Paton, v, 244), it was settled that the validity of a valuation, which had been made in the year 1630, was not affected by the minister, who was only a stipendiary, not having been called as a party to the proceeding. And thus the doctrine, besides being clear on principle — on statute—and on practice—was established by the highest judicial authority.
Attempts have recently been made to evade the authority of that decision, by alleging that the ground upon which it proceeded was, not that the minister of the parish was only a stipendiary, but that the valuation was made by the Sub-Commissioners. There appears to be no warrant for so evading the force of that decision. There is no indication in the terms of the judgment, of either of the tribunals, that it proceeded on any ground other than what I have stated. The Faculty Report of the case in this Court sets forth the ground upon which the heritor (whose counsel was Mr Connell, the author of the treatise on Tithes) supported the valuation; and that that ground, as there summarised, was—“The statutes prove that the presence of the stipendiary clergy was not required.” The circumstance that it was by the Sub-Commissioners the valuation was made is never mentioned or alluded to in the Faculty report of the case. It is said that that appears in some printed pleading. If that was the case, the fact of its being left altogether unnoticed in the report of the grounds of the judgment, would only make it clear that such a plea had been held by the Court to be unworthy of notice. And again, the argument pleaded by the heritor in his appeal case in support of the judgment, is likewise, as stated in Paton's summary of it, that “the valuation was made in presence of the proper parties—viz., the landlord, whose tithes were valued, and the titular who had right to these tithes, and of course had the primary and material interest to see them valued as high as possible.” In that report also the incident of the valuation having taken place before the Sub-Commissioners is not even alluded to as having been an element in the grounds of the judgment.
Nor is there any ground in reason why stipendiary ministers should have been called as parties to such valuations when they were made by the one set of Commissioners, more than when they were made by the other. To use the words of Lord Brougham in the case of Gordon v. Dunn, 28th August 1833, all valuations which were made by the Commissioners had statutory effect, “ the Sub-Commissioners being as much public functionaries and officers authorised by public appointment, and statutably authorised, as the Commissioners themselves.” And in what a strange state the tithes of Scotland would now be, if, while the valuations of them, in a large portion of the territory, were valid, although wanting a requisite, which, ex hypothesi, is legally essential; the valuations of them in another large proportion of the territory would be nullities in respect of their wanting that requisite. That the valuations stand on the same footing in this respect when made by the Sub-Commissioners as they are when made by the High Commissioners, is further indicated by the judgments of this Court and of the House of Lords, in Fergusson v. Gillespie already noticed; for in that case it was held, that in the cases where ministers are beneficed, and consequently are required to be called as parties, the omission to call them is equally fatal, whether the valuation be made by the Sub-Commissioners, or by the High Commissioners.
Thus, then, down to the year 1809 the objection we are now dealing with was not recognised in our law. If the question had then occurred, this objection must have been repelled. Has, then, the law, as it was then established, been reversed since that time? The objectors say that by three cases, decided in the years 1837, 1851, and 1865, it has now been settled, in contradiction of the judgment of the House of Lords, that valuations are nullities,
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Let us then see whether the decisions in the three intervening cases require us, or even warrant us, now to disregard these judgments of the House of Lords, and of this Court, and the principles and authorities upon which they were founded.
The first is the case of Simpson, 20th June 1837. In that case the opinion of one of the Judges (Lord Mackenzie) was in conformity with the law as formerly settled, that the valuation was valid although the minister was not called to the proceeding, in respect that he was only a stipendiary. The other three Judges were of a contrary opinion. I have examined the report of their opinions with some curiosity, to see on what ground they disregarded the judgment of the House of Lords in 1809, in the case of Campbelton; and to my surprise I find that although the judgment of this Court in that case in 1801 was referred to in the argument at the Bar, the judgment of the House of Lords in 1809 is not mentioned, nor alluded to, in the report of the opinion of any one of the Judges. Even Lord Mackenzie does not mention it in support of his opinion. Nor is it referred to in the pleadings of counsel, as these are reported. The inference from all this is, that in 1837, that judgment of the House of Lords, nearly thirty years before, was then unknown to both the Bar and the Bench—an inference which is supported by the fact that at that time no regular reports of the decisions of the House of Lords in Scotch cases had been published, and that many of their decisions about that period had become unknown to the succeeding generation until they were subsequently reported by Mr Paton. And accordingly, what the three Judges in the majority did found their opinion upon, was only the decision of the case of Purveshaugh in 1671, and the opinions which Forbes, followed by Erskine, founded on that case; although, as I have shewn, that case warranted such opinions only in cases where ministers were also titulars. Hence that judgment (which was not appealed) did not destroy the authority of the judgment of the House of Lords.
The next case is Stewart v. Brown, 31st January 1851. By that time the judgment of the House of Lords in 1809 had become known by the publication of Mr Paton's Reports. And how was it then dealt with by the Court? There were only three Judges on the bench when that case of Stewart was decided. One of them, Lord Medwyn, was clearly of opinion that the judgment of the House of Lords in 1809, besides being binding on the Court, was well founded on those very grounds in law which I have stated. The other two Judges were of an opposite opinion. But on what ground? As I read the report of their opinions, they dealt with the judgment of the House of Lords only as having been utterly erroneous—in so much that, although it might be necessary to follow it in any other case in which all the circumstances were precisely the same, it ought not to be followed in any case in which there was even an incidental difference. According to the printed report, the opinion of the Lord Justice-Clerk (Hope) was this:—“I do not intend to depart from the rule in the case of Campbelton, which must be repeated, I presume, having been affirmed in the House of Lords, in exactly the same precise circumstances. I may think the rule against principle and against justice. I may think that the very fact that the minister has, at a subsequent period, an undoubted interest to oppose an approbation of a valuation is a sufficient proof of the false principle adopted in assuming, that when the minister was a stipendiary, his interest was sufficiently protected by calling the titular, and that it was unnecessary to make the minister a party to the valuation. And I may think that that case itself shews the hazard of injustice by acting on the fiction—that a distinct and really separate interest, arising out of a different right from that of the titular, was sufficiently protected by calling the titular—and that therefore the minister need not be called. But whatever my opinion of that case may be, while I must hold it as a final decision for the exact case, I cannot extend the doctrine—in itself false and unsound, and full of hazard—to any other class of cases.” I quote the terms in which the Judges, who formed the majority in that case, thus denounced the decision of the House of Lords, as shewing that their opinion did not proceed on the ground that the valuation had been made by the Sub-Commissioners—for these epithets would then have been spared. They avowedly rejected that decision as a precedent, solely because they thought it was erroneous; and they availed themselves of the incident of the valuation having been made by Sub-Commissioners, only to evade the authority of that decision. Notwithstanding my sincere respect for their Lordships, I concur, not with them, but with their colleague, Lord Medwyn, in holding the judgment of the House of Lords, besides being well founded in principle and on authority, to be binding as a precedent upon this Court.
The remaining case is that of Kirkwood, 7th November 1865. In the report of that case, the judgment of the House of Lords in the case of Campbelton is never alluded to by any of the judges. According to that report, they dealt with the question as having been settled by authority, although the only authorities referred to by their Lordships were again the case of Purveshaugh, with the dicta of writers founded upon it, and the cases of Simpson and of Kirkwood. It is thus remarkable that the decision of the House of Lords, in the case of Campbelton, does not appear to have ever been noticed by the Judges in this Court in any of these three cases, except in the case of Stewart, where it was dealt with in the manner I have mentioned.
Two cases mentioned in Shaw's Teind Cases — Earl of Kinnoull, 21st May 1823, and Duke of Gordon, 2d December 1823—have been referred to as supporting the contention of the objectors. But I cannot see what reference they have to the question as to the alleged necessity of stipendiary ministers being called as parties to valuations of teinds. These cases related to two valuations by Sub-Commissioners, one of which had been made in 1635 in the parish of Kinnoull, and the other in 1629 in the parish of Urquhart. But in both of these cases the minister had been called as a party; and the valuation, as originally made, was not alleged to have been objectionable on any ground whatever. The objection stated against them was that, however valid they might have originally been, they had subsequently become ineffectual by having been delinquished. Both of them had been approved of in processes of approbation by the High Commission—the one in 1814, the other in 1784. The
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I am thus of opinion that, on principle, on practice, and on authority, the general objection which has been stated to the valuations in question ought to be repelled. I must explain, however, that this opinion applies only to valuations which were made during the seventeenth century; and that I reserve my opinion as to what might be the effect of this objection as to valuations subsequently made by this Court in virtue of the jurisdiction conferred upon it by the Statute 1707. Its functions are in some respects different from those of the former Parliamentary Commissions. It is directed to exercise these functions “in all respects as the said Lords do, or may do, in other civil causes.” And, accordingly, its judgments are appealable to the House of Lords. Moreover, during the last century and a-half, the prudent precaution of calling the stipendiary minister has been more generally adopted than it formerly was. I am far from saying that the law itself has undergone such a change; but I reserve my opinion upon that question, should it occur. The opinion I have expressed applies only to such valuations as were made during the preceding eighty years by the Parliamentary Commissioners; and all the four valuations we are now dealing with were made during that period.
Another answer made to this objection is, that if it should be held that it was requisite that stipendiary ministers should have been called as parties to the valuations, there would be a presumption that that requisite was complied with. It is maintained that the legal presumption, rite et solemniter actum, would apply. And it appears to me that that plea also would be well founded. For, in the first place, it is presumable that the Commissioners would not have proceeded to perform their functions without all parties being called whom the law required to be called. And although the evidence of that requisite having been complied with cannot now be produced, this may have arisen from the destruction of the records and other proceedings of the teind office. And, in the next place, the acquiescence by all parties concerned in the efficacy of the alienations; and, in particular, the facts that the heritors never until now have been called upon to pay more than the sums in the decrees of valuations as teind-duties to either titulars or the ministers,— and that the localities of stipends among the heritors have been made in comformity with these valuations,—warrant a presumption that whatever requisites the law required to be observed, had actually been observed. There are several decisions to that effect.
It remains to notice the special objections which are stated to these valuations. They are alleged to have been pronounced without any other evidence of the value of the teinds having been adduced before the Commissioners than voluntary agreements between the titulars and heritors that the teinds should be valued at certain sums. With regard to that objection my opinion is this.—On the one hand, when such agreements were altogether extrajudicial, and processes were instituted before the Commissioners of Teinds merely to have such prior extrajudicial agreement approved of, without any other evidence being brought as to the value of the teinds,—such decrees of approbation are not effectual. I think that such proceedings are not of the kind which the Commissioners were empowered to carry into effect. Their functions were to value teinds; and such approbations of prior extrajudicial agreements do not appear to have been within their functions. And, according to the judgment of the House of Lords in the case already referred to, of Gordon v. Dunn, 28th August 1833, such decrees by the Commissioners of Teinds were held to be ineffectual. On the other hand, when proper actions of valuations were brought before the Commissioners, and a proof was allowed to the parties of the value of the teinds, a judicial agreement of all the parties in presence of the Commissioners was legal evidence. The Commissioners had an opportunity of judging whether or not such a judicial transaction was fair, and of sustaining or rejecting it as they might see cause. There are, accordingly, many cases in which such a proof has been held to be legal and sufficient. Keeping this distinction in view, I think that two of the decrees in question ought to be sustained.
One of these is the decree of 16th June 1697, at the instance of James Gray of Balgownie. The proceedings in that process had been lost with the other teind records, and no extract of it had been preserved. But its tenor was proved by a decree of proving the tenor, dated 8th February 1727, in conformity with the Statute 1707. It thence appears that an action of valuation having been instituted before the Commissioners, a proof had been allowed, writings for proving the tenor of the decree had been produced, and witnesses had been examined; that in the course of discussing some questions as to deductions claimed by the heritor, a judicial submission was made to settle these matters; and that thereafter the Commissioners pronounced the decree of valuation. I think that that decree was valid and effectual.
The other decree, which, as I think, should be sustained, is that dated 31st December 1690, at the instance of George Paton of Grandholm. It also bears to have proceeded upon a written consent by the titulars, of a prior date; and consequently, if nothing more had been produced, I think that that extrajudicial consent, per see, would not have been sufficient. But the decree bears that, after a remit had been made to two of the Commissioners, they reported to the Court of Commissions that a new consent by the titulars was offered to be produced judicially; and such new consent was produced as to the value of the teinds, I think that this was truly a judicial valuation, and was effectual.
But as to the other two valuations, no evidence of the value was produced in either of them, excepting certain written documents, dated some years before, in which the parties had then agreed that, if afterwards processes of valuation should be instituted, the teind should be valued at the sums
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Lord President—Then we adhere to the Lord Ordinary's interlocutor.
Mr Asher — With expenses?
Lord President—With expenses.
Solicitors: Agents for Ministers— H. and A. Inglis, W.S.
Agents for Mr Forbes— Henry & Shiress, S.S.C.
Agent for Major Paton— W. Duthie, W.S.
Agents for Mr Skene— Auld & Chambers, W.S.
Agent for Mr Hay— James Webster, S.S.C.
